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Domestic Violence, Dementia and Aging

Posted By
Evans & Hubbard, Attorneys at Law

Imagine that you are talking to your neighbor. She is 80 years old, and
is talking about her husband. “That
John!” she says. “He keeps insisting that I had an affair
50 years ago with a man down the street when he would be away on business.
I don’t know why he keeps saying that, it’s crazy!”
Your neighbor describes how her husband came
at her with a kitchen knife because he was so angry at her for having
the affair. As you keep talking to her, you
learn that the Wife does not know whether they have any assets left because
her 50 year old son just told her that Dad just gave him $100,000, and
as a result, she doesn’t believe that she has any options.

Sound implausible?

All of the facts listed out above are bits of 3 different cases that I
have had. Domestic violence in the elderly population
is a significant issue, as is elder abuse – either physical, emotional,
neglect or financial – and will continue to do so as the Baby Boomer
population continues to age.

Some basic statistics:

In Multnomah County in 2009, there were 8231 calls about elder abuse, with
2,797 allegations in completed
investigations. It is estimated that 84% of incidents regarding elder
abuse are not reported.

Accounting to the National Council on Elder Abuse:

1990 1996

Family member as perpetrator 31.9% 36.7%

Spouse as perpetrator 15.4% 12.6%

Grandchild 4% 7.7%

Type of Abuse

Neglect 47% 55%

Physical 20.2 14.6

Percent victims that are women 68% 67%

What is the causal connection in abuse as parties get older?

We usually assume that people often get more mellow as they get older,
there is less energy. However, if alcohol or any kinds of drugs are involved
when the person is younger, the impact increases as the person gets older,
and aging symptoms are added to an underlying basic problem.

There is also the increased number of people that have dementia as they
age. Dementia interferes with ability to make
sound decisions as well as impulse control.

In Oregon, stated in terms of 000s, the following is true and projected:

Age 65-74 75-84 85+

2000 3.2 30 24

2010 3.5 34 39

2020 5.5 40 45

2025 6.6 52 49
(age when all Baby Boomers will be age 85)

So what about your neighbor? What are her options?

She probably doesn’t want to be divorced, she just wants her husband
to change his behavior so that she
isn’t in physical danger or financially threatened. She probably
also doesn’t want to call the police, because of not wanting to
admit the problem to an outsider, and the possible censure of her children.
What’s left? One possibility
might be a guardianship, assuming that you can get a legal determination
that the Husband is incapacitated.

“Incapacitated” according to ORS 125.005 (5) means:

“a condition in which a person’s ability to receive and evaluation
information effectively or to communicate decisions is impaired to such
an extent that the person presently lacks the capacity to meet the essential
requirements for person’s physical health or safety, defined as
actions necessary to provide health care, food, shelter, clothing, personal
hygiene and other care without which serious physical injury or illness
is likely to occur.

That’s a pretty high standard. How do you even get someone like the
Husband to even be evaluated by a doctor? Husband’s regular doctor
is not likely to have enough information to make any evaluation or recommendation.
Cognitive communication, or the ability to carry on a conversation, is
one of the last skills to go because it the skill
most commonly practiced. Doctors usually see patients for 15-20 minutes
at a time, and are focused on only the
presenting symptoms. By the time that doctors become aware of additional
difficulties, enough to order a
neuropsychological evaluation, the patient will often refuse to take the
exam, because they are not able to recognize their own impairment.

Wife could file for a guardianship, and if Husband’s doctors are
able to support that he is incapacitated, a guardian will be appointed.
However, in the legal sense, Husband is not incapacitated. He is able
to take care of himself in such a
way as to avoid his own physical injury or his own illness.

Potentially, Wife could assert that Husband has a mental illness that causes
him to be a danger to himself or others. Again, Husband’s current
treating physical may not have sufficient information or documentation
to support that. Depending upon the facts, the court may order that a
psychiatric evaluation be done.

One area that doctors and mental health providers look for is whether the
behavior is a significant change from other behaviors during that person’s
lifetime. Chances are pretty good that Husband has whipped out the accusation
of her having an affair several times during the last 50 years, but aging
has cause him to become more convinced that it actually happened. Chances
are also good that there was some degree of domestic violence prior to
the person reaching age 80 as well. So the behavior hasn’t really
changed, only the degree of behavior. So, even if Wife could force a psychiatric
evaluation, which is doubtful, there is a significant risk that she permanently
alienates Husband and will not be able to get a guardianship.

So what options areremaining?

Family Abuse Restraining Order: Elderly people are reluctant to ask for
this, even if it is appropriate. They feel vulnerable, and are afraid
of losing financial security, and companionship, even if it means putting
their own health at risk. In the case with the man coming at his wife
with a kitchen knife, he freely admitted it in court order, saying that was the
only way he could get her to do what he wanted, and he saw nothing wrong
with his actions.

There are also provisions for restraining orders against elder abuse, which
include physical or financial
abuse by anyone, and are civil actions. This goes far beyond a spouse,
but can be anyone connected to the elderly
person. This could include anyone, such as a family member, that helps
a parent redo their will, or help them with
their finances.

By the time that the elderly are in their late 70s or 80s, they have often
been married 2 or 3 times. Who helps the elderly person can be a major
source of contention, as you have children from different marriages, and
children who are looking to protect their own parent, but not concerned
about their parent’s spouse, which brings competing children to
“protect” their
parent into play.

Divorce: Secure at least half of the assets for the victim, and remove
the physical threat. Emotionally, however, victims over the age of 65
are more vulnerable, and fear being alone, even if they are financially
secure. In a recent case, the Husband is begging the Wife to come back,
because he needed to be taken care of, the abuse was because of his drinking,
his medications caused him to drink, and so he has taken himself off of
his medications so there won’t be any more
problems. She went back to him, and hoped that nothing further would happen.

If one child can prove that his parent is incapacitated, then the child
can be appointed as guardian ad litem, and pursue divorce action, in order
to protect the parent’s assets at the expense of the spouse, which
also serves to protect the child’s potential inheritance. Many of
the guardianship and conservatorship disputes are between competing “families”.

As a significant number of Baby Boomers age, the problems will continue
to grow. People, even children are reluctant to become involved because
we want to respect an elderly person’s dignity and self-reliance,
and because there are often family rifts that never heal over trying to
protect an elderly person. Sometimes the “protection” is abusive
and takes advantage of the vulnerabililty. Judges will deal with it as
it comes in front of them, but are at a loss to prevent the problem from
getting to the point that a judge has to make a decision.

It’s complicated, but if you know what your options are, at least
you have more information to make a reasonable decision for yourself or
for your aging parent.

Tigard Divorce Lawyers

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